When a person is pulled over for suspicion of drunken driving in California, the officer will often just say “blow in this” and thrust a breathalyzer into his or her mouth. However, it is of the utmost importance for you to be aware: you do not have to submit to such pre-arrest tests!
The California Vehicle Code actually requires that an officer advise a motorist suspected of drunk driving that such a pre-arrest test can be refused. In reality, however, this is extremely rare. Breathalyzers and field sobriety tests like walking a line or touching your finger to your nose are designed to be used as investigative tools for an officer to determine if a person is under the influence of alcohol. However, if you have not been placed under arrest, they are COMPLETELY OPTIONAL.
Once you have been placed under arrest, you MUST submit to a chemical test, but you have the choice of either a breath or blood test. A refusal to submit to a test after being placed under arrest will result in an automatic one year suspension of your license in addition to the DUI charges.
If you have been drinking and are pulled over, there are several ways to use this knowledge to your advantage:
-If you believe you may be close to the legal limit but think you can handle yourself fine, you should agree to perform the field sobriety tests and refuse the breathalyzer. Politely tell the officer that you are concerned about the accuracy of hand held breathalyzers and agree to walk the line, etc. to demonstrate your sobriety. If you can show that you are in control of your motor functions, they might let you simply drive away.
-If you believe you may be close to the legal limit but are nervous or concerned about performing the field sobriety tests, simply refuse all pre-arrest tests. Politely tell the officer that you do not wish to take any pre-arrest sobriety tests because your attorney has advised you that they are extremely inaccurate. You will probably be placed under arrest at this point. You should now insist on a blood test. It will take some time to get to a station where a blood test can be performed. If you are close to the legal limit, by the time you get to the station your BAC may have declined to under .08%.
-If you know for a fact that your BAC is well over the legal limit, politely decline any and all pre-arrest tests. Speak as little as possible, and do not admit any alcohol consumption. Any thing you say or do indicating that you are intoxicated WILL be used against you in court. If you are arrested, insist on a blood test. Again, the time it will take to get you to a station can be an opportunity for your BAC to decline. A BAC over certain limits will result in harsher penalties, and a BAC close to the legal limit may be more easily challenged.
Remember, you pre-arrest tests are optional and post-arrest tests are not. If an officer tries to force you to take a test, simply ask him if you have been placed under arrest. Always be polite and respectful. If the officer asks you why you are refusing a test or requesting a different test, simply tell him you are doing what your lawyer advised you.
For more information on how to fight and prevent DUI arrests and convictions, contact Scott R. Ball today. A confidential evaluation of your case is always free.
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